Rimes, David Lynn

• Court: Court of Criminal Appeals of Texas
• Decided: October 15, 2014
• Docket: WR-73,120-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-73,120-03

EX PARTE DAVID LYNN RIMES, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 26521 IN THE 86TH/ 422ND DISTRICT COURT FROM KAUFMAN COUNTY

Per curiam.

ORDER

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of driving while

intoxicated and sentenced to forty-three years’ imprisonment. The Fifth Court of Appeals affirmed

his conviction. Rimes v. State, No. 05-08-01543-CR (Tex. App. – Dallas, October 15, 2009, no pet.).

Applicant contends that his trial counsel rendered ineffective assistance because counsel

failed to preserve error by requesting an instruction to disregard erroneously-introduced evidence,

and failed to challenge the qualifications of the officer who performed the field sobriety tests on

Applicant. 2

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these

circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294

(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court

shall order trial counsel to respond to Applicant’s claims of ineffective assistance of counsel. The

trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d). In the

appropriate case, the trial court may rely on its personal recollection. Id.

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent.

If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall first supplement the habeas record with the portions of the trial

transcripts relevant to Applicant’s claims. The trial court shall make findings of fact and conclusions

of law as to whether the performance of Applicant’s trial counsel was deficient and, if so, whether

counsel’s deficient performance prejudiced Applicant. The trial court shall also make any other

findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of

Applicant’s claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 90 days of this order. A supplemental transcript containing all

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall

be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall

be obtained from this Court

Filed: October 15, 2014 Do not publish